Rod Blagojevich is lone target now that brother is cleared

Federal prosecutors dropped all charges Thursday against Rod Blagojevich's older brother, betting that putting one fewer Blagojevich on trial could make it easier to convict the allegedly corrupt former governor of Illinois.

Sources familiar with the matter said the surprise decision to dismiss Robert Blagojevich from the case and concentrate solely on the ex-governor was a tough strategic decision, while legal analysts called it a sign the government is trying to adapt to lessons learned from last week's hung jury and mistrial.

The deadlock showed that Robert Blagojevich was going to be tough to convict and was complicating efforts to have a jury find his more famous brother guilty, veteran trial lawyers said.

"Sometimes it's wise to sacrifice a lesser goal if it increases your chances of reaching a greater one," said Joel Bertocchi, a former federal prosecutor.

The legal experts said the prosecution move may force the hand of Rod Blagojevich's lawyers to mount a defense at a retrial and perhaps put him on the stand, neither of which they opted to do at the first trial.

After all, his brother proved a powerful and sympathetic witness, said Ronald Safer, another former federal prosecutor. That will be lost at a retrial with Robert Blagojevich no longer part of the case, he noted.

"Although (the former governor) didn't put on a defense, he benefited from the defense his brother put in," Safer explained.

Removing that part of the case, though, could make for a much simpler proceeding the next time, he said. "It probably doesn't change the evidence, but the argument and the deliberation become much more direct."

Also Thursday, U.S. District Judge James Zagel set the first week of January as a target for another jury to hear the case against the former governor. The judge said Blagojevich will have just two attorneys if the public picks up the tab as expected.

After a summerlong trial and 14 days of deliberations, jurors last week deadlocked on all four corruption counts against Robert Blagojevich and 23 counts against Rod Blagojevich. The former governor was convicted on only one count of lying to the FBI.

Robert Blagojevich became enmeshed in the case after he ran fundraising for his brother's campaign fund for the last four months of 2008, a period during which prosecutors used wiretaps to secretly record the former governor as he allegedly tried to sell his power to pick a successor for President Barack Obama as U.S. senator. At times during testimony, though, Robert Blagojevich often seemed an afterthought.

Assistant U.S. Attorney Reid Schar told Zagel on Thursday that the government was dropping two counts of extortion conspiracy and one count each of wire fraud and extortion against Robert Blagojevich because of "the disparity in the roles" of the two brothers. He also cited "the interests of justice."

In the wake of the mistrial, prosecutors were angling to shed Robert Blagojevich from the next trial at least and probably from the case entirely, according to legal sources familiar with the situation. Just Wednesday, Blagojevich's lawyer, Michael Ettinger, rejected a prosecution offer to retry his client separately after the second trial of his brother had concluded.

Bertocchi said it was clear to him the move was designed to influence the second trial of Rod Blagojevich and was not some prosecutorial admission that a mistake had been made in charging Robert Blagojevich in the first place.

"What had changed other than the fact they had hung a jury?" he said.

Last week, after the trial ended largely in a deadlock, several jurors spoke of feeling more forgiving toward Robert Blagojevich than the former governor. Jurors said they were almost evenly divided on the charges against Robert Blagojevich, but the former governor was saved from conviction on the marquee charge — the alleged sale of the Senate seat — by a lone holdout.

On Thursday, jury foreman James Matsumoto, who voted to convict Robert Blagojevich on the four counts, said he was surprised by the decision but agreed with the government's choice.

"Although the letter of the law said we should find him guilty, it was very difficult to do so,'' Matsumoto said.

Matsumoto pointed to Robert Blagojevich's negotiations with supporters of U.S. Rep. Jesse Jackson Jr. in Chicago's Indian community who pledged campaign contributions for Jackson's Senate appointment, saying that "led me to believe he knew what was going on."

"However, I never felt good about it. He was doing it for the best intentions," Matsumoto said of Robert Blagojevich. "It's just difficult to blame this man. I did believe he was guilty. It was hard to say he should go to jail.''

With Robert Blagojevich now out of the case, the legal experts said it may force the hand of his brother's lawyers to mount a defense. That could mean testimony from Jackson and White House Chief of Staff Rahm Emanuel, two of many politicians Blagojevich claims were involved with him in above-board political horse trading over the Senate vacancy.

"Without the sympathetic brother testifying, now you have to do your own work," said Jeffrey Cramer, another former federal prosecutor.

Robert Blagojevich himself could once again take the witness stand, but this time he would have to be called by his brother in the defense case. Cramer said that would change his time on the stand significantly.

In a reversal of roles, the government could try to limit what he says and show that he doesn't know his brother's intent because he wasn't connected to illegal dealings. For example, Robert Blagojevich was tangentially involved in what prosecutors claim was a scheme by the former governor to shake down an executive of Children's Memorial Hospital for campaign contributions.

The two brothers are not close. Even though on the witness stand Robert Blagojevich had kind words for his brother, the strain in their relationship was on full display at the just completed trial. They sat at different tables in the courtroom, just feet apart, but never spoke and displayed icy body language.

Indeed, Rod Blagojevich said Thursday that he had yet been unable to contact his brother "and tell him how relieved I am" about the latest twist in the case. The former governor said he had put in a call to Robert Blagojevich, but he didn't pick up and his voicemail box was full.